Construction, General Negligence, Publications

Illinois Supreme Court Restricts Construction Negligence and Premises Liability Theories of Recovery in Illinois

October 26, 2016

Defense attorneys and their clients received a boost in personal injury cases involving construction accidents thanks to a recent Illinois Supreme Court ruling.  On October 20, 2016, the Supreme Court of the State of Illinois released its opinion in the case of Patrick Joseph Carney v. Union Pacific Railroad Company, 2016 IL 118984.  Plaintiff Carney filed a negligence action in the Circuit Court of Cook County against Defendant, Union Pacific Railroad Company, after he suffered personal injuries while working at a railroad bridge.  In 2006, the Defendant railroad contracted with an independent contractor. The independent contractor was charged with providing all necessary labor and materials to remove three abandoned railroad bridges. That independent contractor then contracted with Plaintiff Carney to perform certain work for it to assist in the bridge removal process. The Defendant railroad had no knowledge of the agreement that had been reached between Plaintiff Carney and the independent contractor that it had retained to remove the bridges.

During removal efforts for one of the bridges, Plaintiff Carney was severely injured. Plaintiff sued the independent contractor that his employer contracted with, as well as the Defendant railroad.  The railroad subsequently filed a motion for summary judgment which was granted by the Trial Court.  That decision was then reversed by the Illinois Appellate Court.  2014 Ill. App. 1st 130105-U.  The Appellate Court noted in its decision to reverse the Trial Court that a genuine issue of material fact had existed as to whether the Defendant railroad retained control over the work performed by the independent contractor so as to become vicariously or directly liable to Plaintiff Carney.


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In its decision, the Supreme Court provided a brief history of Section 414 of the Restatement (Second) of Torts. The Court noted that under the common law, one who employs an independent contractor is not liable for harm caused by the independent contractor’s acts or omissions.  Because the independent contractor is the hiring entity, the Supreme Court noted that direct liability can still be found under Section 414, as a hiring entity may yet still be liable for its own negligence where it retains some control over the independent contractor.  The Court noted that many Illinois Appellate Court decisions exist which have cited Section 414 of the Restatement as a basis for the imposition of both direct liability and vicarious liability against an employer of an independent contractor.

The Court’s analysis was confined to whether Defendant had retained control over the work of its independent contractor such that it could be found directly liable pursuant to Section 414. The Court did not consider the possibility under the facts presented to it in Plaintiff Carney’s case of whether vicarious liability existed, because it noted that Plaintiff Carney had not pursued such a claim.  However, the Court made several indications within its opinion that Section 414 articulates a basis for the imposition of direct liability and not vicarious liability.  According to the Court, Comment A to Section 414 has created confusion in the lower courts.  Therefore, the Court noted that Comment A explains when Section 414 does not apply rather than explains when it does apply.  According to the Court, Section 414 takes over where agency law ends.  The Court concluded that Section 414 does not provide for vicarious liability.

The Court went through a litany of construction negligence cases in Illinois Courts and noted with approval that there are numerous Appellate Court opinions holding that such things as the right to stop work, or to tell contractors to be careful or change the way something is being done does not establish sufficient control to impose liability. The Court reiterated its approval of numerous Appellate Court opinions that have held that a general right to enforce safety does not amount to retained control.  This is important with regards to construction negligence cases as Plaintiffs typically argue that a sufficient level of retained control is satisfied whenever a general contractor has a general right to stop work or if the general contractor performs certain tasks at the jobsite, such as requesting that employees of its subcontractors wear safety gear or follow safety rules.  The Court noted that because the record contained no evidence that the Defendant railroad had retained at least some degree of control over the manner in which its independent contractor performed bridge removal work, the Court held that the Trial Court did not err in granting Defendant railroad summary judgment on Plaintiff’s theory of retained control.

The Court also addressed the theory of Plaintiff that was brought pursuant to Section 411 of the Restatement (Second) of Torts regarding the selection of contractor. Plaintiff Carney alleged that Defendant was negligent in the selection of its independent contractor. Section 411 states that “an employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a careful and competent contractor” in certain circumstances.  The Supreme Court agreed with both courts below that a fact question existed as to whether Defendant failed to exercise reasonable care in the selection of the independent contractor. The court rejected Plaintiff’s argument that he was not in the course of his employment at the exact time of the injury, based largely upon the plaintiff having made and settled a significant workers compensation claim.  The remaining question though was whether his status as an employee of the lower tier subcontractor placed him outside the protected class of “third persons.”  It did.  The court distinguished Plaintiff’s status from members of the general public, who would be uninvolved in the construction process. The duty recognized under Section 411 applies to “third persons’, not someone such as Plaintiff Carney who was in a position to protect himself against the risk associated with the bridge removal work.

When an accident involving personal injury occurs at a construction site, Plaintiffs also often allege a theory of premises liability. In this case, the Court also considered Plaintiff Carney’s premises liability claim under Section 343 of the Restatement (Second) of Torts. The Court noted that one of the criteria of Section 343 is that the condition that the Plaintiff complains of must be a “condition on the land”. Plaintiff Carney alleged that a steel floor plate injured him.  The steel floor plate was part of the bridge that was being removed, and the plate extended several feet into the roadbed, which Plaintiff argued made the plate a “condition on the land”. However, the Court noted that even if a condition on the land is found, a Defendant must have actual or constructive notice of such a condition on the land.  No evidence was presented that the Defendant knew or should have known that the steel-plate extended into the roadbed.  The Court therefore upheld the Trial Court’s decision to grant summary judgment as to Plaintiff’s claim based on Section 343.

The Carney decision can be relied upon in any dispositive motions where a Plaintiff alleges construction negligence or premises liability theories. It is clear from the Court’s analysis that it considers Section 414 to provide a method for Plaintiffs to establish liability via direct liability rather than vicarious liability for an independent contractor’s acts.  Also, construction workers such as Carney are not the intended “third persons’ under Section 411 of the Restatement. The Court’s ruling regarding premises liability can also be cited in cases where Plaintiffs allege that the actual defective or dangerous construction work is a “condition on the land”.  Via the Carney decision, defendants can argue Section 343 is not satisfied unless the Plaintiff can indicate he was injured via a “condition on the land”, and further that construction work would not be considered such a condition.

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